Appeals court pushes for info on Hawaiian artifacts

At issue is an order for Hui Malama to return reburied items

A panel of three federal judges grilled a native Hawaiian group yesterday about the location, safety and "loan" circumstances of 83 priceless artifacts that they reburied in a Big Island cave five years ago.

At a contentious hearing yesterday in San Francisco, the native Hawaiian group, Hui Malama I Na Kupuna O Hawaii Nei, told the 9th Circuit Court of Appeals that fulfilling a lower federal court order to retrieve the items from Kawaihae Cave, or Forbes Cave, would be a desecration that would violate their "cultural and religious beliefs."

In September, U.S. District Judge David Ezra ordered Hui Malama to retrieve the items, saying the artifacts faced "irreparable harm" from possible theft, environmental conditions and insects. He instructed them to bring the items to the Bishop Museum so that they could be held in climate-controlled safety and away from public view until 14 competing native Hawaiian claimants can decide their fate.

Soon after, Hui Malama appealed Ezra's decision to the higher court. The three-judge panel did not issue a final decision yesterday, but could do so at any time.

Judge Stephen Trott, referring to Ezra's order, said yesterday, "We have a very detailed document from a very experienced trial judge."

According to an audio tape of yesterday's hearing, Trott said that Hui Malama "will have to convince us that he applied an incorrect legal standard, misapprehended the law or relied on clearly erroneous findings of fact."

At one point yesterday, Trott summed up the legal situation, saying "there are numerous, legitimate contenders" for the cave items, and "Judge Ezra was simply trying to preserve the subject of the controversy against the possibility of irreparable harm."

After the hearing, Alan Murakami, an attorney with Native Hawaiian Legal Corp., which is representing Hui Malama, told the Star-Bulletin that "it's really unpredictable how they will (rule)."

Sherry Broder, an attorney representing two native Hawaiian organizations that sued Hui Malama in August demanding return of the items, said "the judges took the matter very seriously and expressed great concern about the safety of the artifacts."

Broder represents Na Lei Alii Kawananakoa and the Royal Academy of Traditional Arts, which are recognized as claimants to the Kawaihae items under the Native American Graves Protection and Repatriation Act.

COURTESY OF BISHOP MUSEUM
These are among the 83 items "loaned" to Hui Malama that Bishop Museum wants returned.

NAGPRA is a federal law enacted in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts from museums back to indigenous people. NAGPRA provides that when competing claimants cannot resolve issues among themselves, they should enter federal court.

Murakami told the appeals court that the NAGPRA review committee, which has twice recommended the restart of the repatriation process, "took sides and made conclusions of law that clouded this process unnecessarily and, we believe, illegally."

Murakami was questioned intensively about the location of the reburied items because Ezra had used uncertainty about their location as one of his reasons to recall them.

Murakami said Ezra bought the "manufactured contention" of Hui Malama's opponents that "the location is uncertain." He said Ezra "is mistaken" and "made a factual error about the issue" of location.

The judges also questioned Murakami about how Hui Malama obtained the items.

According to court documents, Hui Malama signed a "one-year loan" for the items in February 2000. That loan was the subject of debate during yesterday's proceedings, in part because Hui Malama repeatedly said publicly that it did not intend to return the items because the loan "was a vehicle for repatriation."

Murakami told the court that the items were looted from the cave in 1905 by three grave diggers and that the museum knew it was taking stolen goods.

"How can you loan something that was (originally) stolen?" said Murakami.

Broder said Hui Malama's treatment of the loan "sabotaged" the repatriation process.

Near the end of the hearing, Trott seemed to agree, telling Murakami: "The case to me has every appearance of your side trying to hijack a process" designed to "allow everyone, who has a right, to come to the table."

Murakami countered that the court's "view is misinformed," adding, "I hear inflammatory accusations thrown against Hui Malama hoping that one will stick."